State versus Federal Implications
Conflict between state and federal law is no new story to US citizens as they are often caught in the battle between the two sources of power. Starting at the creation of the US when power was much more reserved to the states and “The United States of America” was grammatically plural and ending in the present where in comparison to 1776, a lot of power has been shifted back to the federal government and “The United States of America” is now grammatically singular, it is easy to see how there has been a continual flow and change of power between the states and federal government. One of the most current and hotly debated issues that is being dealt with at both a state and federal level is same-sex marriage, but many other issues that have been lost between state and federal power have preceded this most current debate. After a long and tenuous battle, in 1973 the US Supreme Court ruled that it was unconstitutional for states to refuse abortions to mothers because of a citizen’s right to privacy under the 14th amendment.3 The ruling of Roe v. Wade essentially meant that as a country, the US permitted and protected a woman’s right to choice, but under what conditions a woman could chose an abortion was left up to the states to decided. Due to this freedom of power left to the states, many states have created laws that have almost made abortion under any circumstance illegal while others, such as California, allow for an abortion to occur with no medical reasoning up through the first trimester. As it is easy to see, although the federal government ruled to protect a woman’s right choose an abortion, some states twisted the ruling to the point that there laws almost completely contradict federal law, but lawfully, each state has the right to do this. Many other hotly debated issues such as the legalization of marijuana and education face this contradiction of state versus federal laws, and the struggle for same-sex marriage is no exception. In 1996 both houses of congress signed into effect a bill titled “The Defense of Marriage Act” or commonly known as “DOMA”.2 DOMA states that federally, the US government does not acknowledge marriage between same-sex partners, but states are allowed to recognize and allow same-sex marriages within their own state.2 Where DOMA really begins to convolute the legitimacy of same-sex marriage is when it states that states are allowed to choose whether or not they recognize the marriage license of a same-sex couple from another state based on whether or not they themselves recognize same-sex marriage. DOMA is bittersweet in the fact that it allows for states to recognize same-sex marriage, but since it states that the federal government does not recognize same-sex marriage, many same-sex couple lose out on the rights that heterosexual couples get to enjoy as a married couple. Although individual states do have taxes and other measures that change upon marital status, most benefits that a couple would enjoy from marrying one another are determined at the federal level. For instance, veteran affairs are dealt with at the federal level so if a same-sex couple had one partner who was a veteran, his or her partner would not be able to share or acquire benefits that a heterosexual partner in the same situation would be able to acquire or share. In many households, veteran benefits can make or break the quality of life of veterans and their partners so that same-sex couples are disproportionately denied these benefits. Although DOMA denies same-sex couples an innumerous amount of rights as a married couple, it does allow for states to decide for themselves whether or not to allow and recognize same-sex marriage. For instance, proposition 8, the proposition that has barred same-sex marriage in California, was recently overturned because it was deemed that there are no legal reasons why same-sex marriage should be illegal in California, which means that same-sex partners can now marry in California. Although this is a great success, it still means that if a same-sex couple was married in California and later moved to another state such as Oregon, which does not recognize same-sex marriage, they would no longer be seen or recognized as a married couple. The controversy of DOMA revolves around the premise that even at the federal level and according to the US constitution, prohibiting same-sex marriage is unconstitutional because it infringes on the couple’s right to privacy that is protected by the 14th amendment.1 What DOMA has successfully done is support differential citizenship because by refusing to recognize same-sex marriage under federal law, it is allowing for the US federal government to willfully keep rights away a certain group of people simply based on their sexuality. Although DOMA has many negative implications upon same-sex couples, it does allow for states to decide for themselves whether or not they want to allow and recognize same-sex marriage, which as of February 7th, 2012, means that same-sex partners not only are allowed to marry in California, it is their constitutional right to do so. Footnotes 1. Newton, David E. Same-Sex Marriage : A Reference Handbook. Santa Barbara: ABC-CLIO, 2010. Accessed April 23, 2012. http://0-site.ebrary.com.opac.sfsu.edu/lib/sfsulibrary/docDetail.action?docID=10437171. 2. U.S. Congress. House and Senate. Defense of Marriage Act. HR 3396. 104th Cong., 2nd sess. (January 3, 1996) 3. U.S. Supreme Court. Roe v. Wade. 410 U.S. 113. (January 22nd, 1973)